Tuesday, October 16, 2018

Yet another ominous development

The Court agrees with Mr. Trump's argument because the tweet in question constitutes 'rhetorical hyperbole' normally associated with politics and public discourse in the United States. The First Amendment protects this type of rhetorical statement. [Emphasis added.]

This ruling has not gotten a lot of attention from the press except to report it as another current event. It is very tempting to shrug this off as a trivial matter, but I think that would be a very serious mistake. This ruling is wrong, and it has major implications for the rule of law.

The problem with this ruling is that not everything that a politician says is automatically "associated with politics and public discourse." Stormy Daniels is not a politician, and her lawsuit against Trump has nothing to do with politics (except insofar as it stems from an attempt — almost certainly an illegal one — by Trump to silence her in advance of the 2016 election). By ruling in Trump's favor the court has essentially said that anything a politician says is (or at least is presumed to be) "associated with politics and public discourse" and thus protected by the first amendment even if the target of the speech is a private citizen.

The implications of this are ominous. It gives carte-blanche to politicians to defame private citizens at will. Think about the effect this will have on people's willingness to go public with information about a politician's misconduct, even criminal misconduct. Anyone who comes forward now will open themselves up to arbitrary slander for which they will have no recourse. It dangerously tips the balance of power between politicians and private citizens in favor of the former. That is a major step on the path to tyranny.

It is also worth noting that the judge who rendered this ruling, James Otero, was appointed by George W. Bush. (What a surprise.)

I am dismayed that this isn't getting more attention. But I guess that's the world we live in now.